An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

YMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

State: Indiana, Court of Appeals of Indiana

Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually

Defendant: Young Men’s Christian Association of Greater Indianapolis

Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

Defendant Defenses: Release and Superseding or Intervening Cause

Holding: for the Plaintiff

Year: 2013

First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.

Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.

The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.

The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.

When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.

Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

When the counselor turned her attention to the creek to check on the other children the minor disappeared.

Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D.

Once the counselor knew the minor was missing she started screaming his name and looking for him.

The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:

1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.

The plaintiff’s opposed the motion for summary judgment claiming four theories:

…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff’s appealed.

Analysis: making sense of the law based upon these facts.

The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.

Whether or not there was a duty owed is also a 3-part test in Indiana.

…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.

The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.

We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.

Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.

The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.

However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.

No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.

[Why is a restroom procedure in a code of conduct?]

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Finally, the court found that counselors were instructed to never leave a child unsupervised.

In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.

The counselor at her deposition testified she knew the procedures.

The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.”

The court found three factors were important in the analysis of the issue.

First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.

Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.

Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.

The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.

So Now What?

First, it sucks to have a case like this; however, it has a lot of useful information.

Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.

Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.

At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.

Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.

Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.

Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.

Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.

Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.

Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.

This is a sad case all around.

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A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.

No. 49A04-1211-CT-551

COURT OF APPEALS OF INDIANA

2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

July 19, 2013, Decided

July 19, 2013, Filed

NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)

PRIOR HISTORY: [*1]

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.

Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)

CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated

COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.

JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.

OPINION BY: FRIEDLANDER

OPINION

MEMORANDUM DECISION – NOT FOR PUBLICATION

FRIEDLANDER, Judge

A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?

We reverse.

The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.

The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.

During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.

On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:

The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.

A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:

[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.

In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:

Summary Judgment Standard

. . . .

11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.

12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

. . . .

17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.

Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.1

1 The Supreme Court described the doctrine as follows:

The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).

Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act2 had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).

The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

Restatement (Second) of Torts §449, known as the very duty doctrine, provides as follows: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:

No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Id. at 213.

Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.

Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:

Q: What are the bathroom procedures for the YMCA?

A: For one staff person to accompany two children to the restroom.

Q: And why do you have that procedure or policy?

A: To protect children and to protect the staff.

Q: Protect children from what?

A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.

Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?

A: Correct.

Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?

A: I can’t . . . .

Id. at 181.

Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.3

3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.

Judgment reversed.

ROBB, C.J., and KIRSCH, J., concur.


Registration is Open for the Colorado Environmental Film Festival

Dear CEFF friends and filmmakers,

The Colorado Environmental Film Festival (CEFF) is an exciting, inspiring, and energizing event that includes world-class environmental films with representatives from local, national and international organizations. We are thrilled to announce our Call for Entries for our 11th annual CEFF is now OPEN for submission!

CEFF seeks unique and meaningful films that aim to inspire, educate, and call to action. The largest environmental film festival between the coasts, CEFF celebrates our 11th annual festival taking place February 23-25, 2017 in downtown Golden, Colorado. Filmmakers of all abilities and backgrounds are invited to submit their films in the categories of Short Films, Feature Length Films and Youth Films (Submission open to for filmmakers under 19 years of age). True to the spirit of Colorado, this event is supported and attended by people who value the natural world and share a passion for the power and beauty of film.

We welcome and encourage you to submit your films today! Early bird registration ends August 15, 2016 so submit your film early for the best value!

Colorado Environmental Film Festival prefers online entries submitted via Withoutabox.com, which provides cost-saving, paperless submission to film festivals around the world. Deadlines and entry fees:

● Early bird – August 15th, 2016 – Price: Regular $30.00 – Student/Youth/Colorado Filmmaker – $20.00

● Regular – September 15th, 2016 – Price: Regular $40.00 – Student/Youth/Colorado Filmmaker – $25.00

● Late – October 30th, 2016 – Price: Regular $50.00 – Student/Youth/Colorado Filmmaker – $30.00

● Extended – November 15th, 2016 – Price: Regular $60.00 – Student/Youth/Colorado Filmmaker – $45.00

Enter today!

https://www.withoutabox.com/03film/03t_fin/03t_fin_fest_01over.php?festival_id=5513

If you have questions please visit go to our website at www.ceff.net

or drop me a note dave.steinke

About CEFF

CEFF hosts local and national feature length and short films for all ages, thought-provoking dialogue, festival celebrations for both filmmakers and audience members, children’s films, a filmmaker forum, and information from a variety of environmental groups. The festival presents informative and entertaining films that explore interconnected ecological, social, and economic themes. Audiences have the opportunity to be more than passive viewers – they will leave inspired, surprised, motivated, entertained, and transformed.


New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.

A minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

State: New York, Supreme Court of New York, New York County

Plaintiff: Davide E. Gomes

Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

The thirteen-year-old  plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.

The plaintiff does not remember the incidence.

Other Scouts at the shower house reported the incident this way.

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.

The plaintiff had been in Scouting since he was 9. He participated  in monthly camp outs with his scout troop.

The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.

The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.

One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower.  Even if an adult was with the youth, there would have to be two adults.

This program was put in place to protect both the youth and the adults in the Scouting program.

Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.

Analysis: making sense of the law based on these facts.

The court first looked at the New York State Department of Health (DOH) rules concerning this case.

As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”

The council had a written plan to confirm to the DOH rules.

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.

DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.

The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.

The court found issues with this.

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.

However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”

The court then looked at the duty owed by the defendants.

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”

The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”

Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”

Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.

The court then looked at why kids go to camps and how parents should deal with those issues.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”

Quoting another case the court stated:

The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”

The DOH report was also dismissed by the court because the person who had completed the report:

…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.

The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.

Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts

At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.

Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.

So Now What?

First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.

On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)

I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.

You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.

clip_image002[4]What do you think? Leave a comment.

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2016 Climbing for Kids with Bigger Mountains to Climb

2016 Climbing for Kids

What: Each year we climb 14,000 feet to the summit of Mt. Bierstadt to honor children with much bigger mountains to climb

When: August 12th, 2016

Where: Mt. Beirstadt

Beneficiaries:Children’s Hospital Colorado Learning Services and Pediatric Mental Health Institute

Registration:

Team Children’s

http://support.childrenscoloradofoundation.org/site/TR/ClimbingforKids/General?team_id=3452&pg=team&fr_id=1410


New Book on Ultrarunning and Training

JASON KOOP LEADS AN ULTRAMARATHON TRAINING REVOLUTION

Koop’s New Book, Training Essentials for Ultrarunning, Reveals His Unique Training Approach

When elite ultrarunners have a need for speed, they turn to coach Jason Koop. Now the sport’s leading coach makes his highly effective ultramarathon training methods available to ultrarunners of all abilities in his new book, Training Essentials for Ultrarunning. Koop’s book is now available in bookstores, running shops, and online. See a preview at velopress.com/koop.

Ultramarathoners have traditionally piled on the miles or tried an approach that worked for a friend. Yet ultramarathons are not just longer marathons; simply running more will not prepare you for the race experience you want. Ultramarathon requires a new and specific approach to training. Training Essentials for Ultrarunning will revolutionize training for those who want to race an ultramarathon instead of just gutting it out to the finish line.

Koop’s race-proven ultramarathon program is based on sound science, the most current research, and years of experience coaching the sport’s star runners to podium performances. Packed with practical advice and vetted training methods, Training Essentials for Ultrarunning is the new, must-have resource for first-timers and ultramarathon veterans.

Runners using Training Essentials for Ultrarunning will gain much more than Koop’s training approach:

* The science behind ultramarathon performance.

* Common ultramarathon failure points and how to solve them.

* How to use interval training to focus workouts, make gains, reduce injuries, and race faster.

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* Koop’s A.D.A.P.T. method for making the right decisions to solve a race-day crisis.

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A revolution is coming to ultrarunning as ultramarathoners shed old habits and embrace the smarter methods that science and experience show are better. Featuring stories and advice from ultrarunning stars Dakota Jones, Kaci Lickteig, Dylan Bowman, Timothy Olson, and others who work with Koop, Training Essentials for Ultrarunning is the go-to guide for first-time ultrarunners and competitive ultramarathoners.


Call for Presentations—2016 NAAEE Conference and Research Symposium

NAAEE is seeking compelling proposals that inform environmental educators about proven practices; explore emerging issues in EE research; advance diversity, equity, and inclusion in the field; and motivate the pursuit of excellence.

Please help us spread the word by sharing this announcement with your professional networks.

Visit NAAEE.org/conference for information on submitting proposals or volunteering as a reviewer.

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